BILL REQ. #:  H-0034.2 

Read first time 01/20/09.   Referred to Committee on Human Services.

     AN ACT Relating to intermediate care facilities for persons with developmental disabilities; and amending RCW 70.129.005, 70.129.010, 70.129.105, 70.129.110, 70.129.160, and 70.129.170.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 70.129.005 and 1994 c 214 s 1 are each amended to read as follows:
     The legislature recognizes that long-term care facilities are a critical part of the state's long-term care services system. It is the intent of the legislature that individuals who reside in long-term care facilities receive appropriate services, be treated with courtesy, and continue to enjoy their basic civil and legal rights.
     It is also the intent of the legislature that long-term care facility residents have the opportunity to exercise reasonable control over life decisions. The legislature finds that choice, participation, privacy, and the opportunity to engage in religious, political, civic, recreational, and other social activities foster a sense of self-worth and enhance the quality of life for long-term care residents.
     The legislature finds that the public interest would be best served by providing the same basic resident rights in all long-term care settings. Residents in nursing facilities are guaranteed certain rights by federal law and regulation, 42 U.S.C. 1396r and 42 C.F.R. part 483. It is the intent of the legislature to extend those basic rights to residents in veterans' homes, boarding homes, ((and)) adult family homes, and intermediate care facilities for persons with developmental disabilities.
     The legislature intends that a facility should care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. A resident should have a safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible.

Sec. 2   RCW 70.129.010 and 1997 c 392 s 203 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Department" means the department of state government responsible for licensing the provider in question.
     (2) "Facility" means a long-term care facility or an intermediate care facility.
     (3) "Long-term care facility" means a facility that is licensed or required to be licensed under chapter 18.20, 72.36, or 70.128 RCW.
     (4) "Intermediate care facility" or "intermediate care facility for persons with developmental disabilities" means a facility described in federal law as an intermediate care facility for the mentally retarded that is certified by the department of social and health services or by the federal department of health and human services to provide residential care under 42 U.S.C. Sec. 1396d(d).
     (5) "Resident" means the individual receiving services in a long-term care facility or an intermediate care facility for persons with developmental disabilities, that resident's attorney-in-fact, guardian, or other legal representative acting within the scope of their authority.
     (((5))) (6) "Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and not required to treat the resident's medical symptoms.
     (((6))) (7) "Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms.
     (((7))) (8) "Representative" means a person appointed under RCW 7.70.065.
     (((8))) (9) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

Sec. 3   RCW 70.129.105 and 1997 c 392 s 211 are each amended to read as follows:
     No long-term care facility ((or)), nursing facility licensed under chapter 18.51 RCW, or intermediate care facility for persons with developmental disabilities shall require or request residents to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of residents' rights set forth in this chapter or in the applicable licensing or certification laws.

Sec. 4   RCW 70.129.110 and 1997 c 392 s 205 are each amended to read as follows:
     (1) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:
     (a) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;
     (b) The safety of individuals in the facility is endangered;
     (c) The health of individuals in the facility would otherwise be endangered;
     (d) The resident has failed to make the required payment for his or her stay; or
     (e) The facility ceases to operate.
     (2) All long-term care facilities shall fully disclose to potential residents or their legal representative the service capabilities of the facility prior to admission to the facility. If the care needs of the applicant who is medicaid eligible are in excess of the facility's service capabilities, the department shall identify other care settings or residential care options consistent with federal law.
     (3) Before a long-term care facility transfers or discharges a resident, the facility must:
     (a) First attempt through reasonable accommodations to avoid the transfer or discharge, unless agreed to by the resident;
     (b) Notify the resident and representative and make a reasonable effort to notify, if known, an interested family member of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand;
     (c) Record the reasons in the resident's record; and
     (d) Include in the notice the items described in subsection (5) of this section.
     (4)(a) Except when specified in this subsection, the notice of transfer or discharge required under subsection (3) of this section must be made by the facility at least thirty days before the resident is transferred or discharged.
     (b) Notice may be made as soon as practicable before transfer or discharge when:
     (i) The safety of individuals in the facility would be endangered;
     (ii) The health of individuals in the facility would be endangered;
     (iii) An immediate transfer or discharge is required by the resident's urgent medical needs; or
     (iv) A resident has not resided in the facility for thirty days.
     (5) The written notice specified in subsection (3) of this section must include the following:
     (a) The reason for transfer or discharge;
     (b) The effective date of transfer or discharge;
     (c) The location to which the resident is transferred or discharged;
     (d) The name, address, and telephone number of the state long-term care ombudsman;
     (e) For residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of ((developmentally disabled individuals)) persons with developmental disabilities established under part C of the developmental disabilities assistance and bill of rights act; ((and))
     (f) For residents who ((are mentally ill)) have a mental illness, the mailing address and telephone number of the agency responsible for the protection and advocacy of ((mentally ill individuals)) persons who have a mental illness established under the protection and advocacy for mentally ill individuals act; and
     (g) For residents of an intermediate care facility for persons with developmental disabilities, the mailing addresses and telephone numbers of the resident's representative, if any, and the human rights committee of that facility established under 42 C.F.R. 483.440.
     (6) A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.
     (7) A resident discharged in violation of this section has the right to be readmitted immediately upon the first availability of a gender-appropriate bed in the facility.

Sec. 5   RCW 70.129.160 and 1998 c 245 s 113 are each amended to read as follows:
     The long-term care ombudsman shall monitor implementation of this chapter and determine the degree to which veterans' homes, nursing facilities, adult family homes, ((and)) boarding homes, and intermediate care facilities for persons with developmental disabilities ensure that residents are able to exercise their rights. The long-term care ombudsman shall consult with the departments of health and social and health services, long-term care facility organizations, the human rights committee of an intermediate care facility for persons with developmental disabilities, resident groups, and organizations for senior ((and disabled)) citizens ((organizations)) and persons with disabilities.

Sec. 6   RCW 70.129.170 and 1994 c 214 s 19 are each amended to read as follows:
     (1) The legislature intends that long-term care facility or nursing home residents, their family members or guardians, the long-term care ombudsman, protection and advocacy personnel, and the human rights committee identified in RCW 70.129.110(((4))) (5) (e) ((and)), (f), and (g), and others who may seek to assist long-term care facility or nursing home residents, use the least formal means available to satisfactorily resolve disputes that may arise regarding the rights conferred by the provisions of chapter 70.129 RCW and RCW 18.20.180, 18.51.009, 72.36.037, and 70.128.125. Wherever feasible, direct discussion with facility personnel or administrators should be employed. Failing that, and where feasible, recourse may be sought through state or federal long-term care or nursing home licensing or other regulatory authorities.((However,))
     (2) The procedures suggested in this section are cumulative and shall not restrict an agency or person from seeking a remedy provided by law or from obtaining additional relief based on the same facts, including any remedy available to an individual at common law.
     (3) Chapter 214, Laws of 1994 is not intended to, and shall not be construed to, create any right of action on the part of any individual beyond those in existence under any common law or statutory doctrine.
     (4) Chapter 214, Laws of 1994 is not intended to, and shall not be construed to, operate in derogation of any right of action on the part of any individual in existence on June 9, 1994.